Joel Tenenbaum is a 25-year-old graduate student at Boston University. The music industry caught him illegally sharing songs online. Through counsel, he has tacitly admitted as much, conceding his use of Kazaa, and is focusing his defense instead on arguments that the copyright scheme is, essentially, unconstitutionally punitive. My colleague, Tom Sydnor, recently addressed some of these constitutional arguments in his historical examination of statutory damages in copyright cases. The blog Copyrights & Campaigns has covered the Tenenbaum case exhaustively.

Tenenbaum is represented by Harvard Law School Professor Charles Nesson, whose conduct as counsel has been bizarre. He has surreptitiously recorded and made public conversations with opposing counsel, his own consultants/experts, and even his own wife. One might argue that some of this -- particularly disclosure of the consultant/expert recordings that are both against his client's interest and may otherwise be protected from disclosure as attorney work product -- is in violation of certain ethical obligations Nesson has under Massachusetts' ethics laws. The most complete litany of Nesson's odd litigation behavior is chronicled here. I would prefer, however, to leave it to Tenenbaum himself to determine the effectiveness of counsel and to avoid slinging unnecessary ethical accusations here.

What this blog post focuses on instead, are the wiretapping-related motions in the Tenenbaum case. Nesson may have violated the federal court's rules of conduct, and even if not, his position about the scope of federal wiretap laws is alarming.

On June 23, 2009, Tenenbaum filed a motion (that I will call "the MediaSentry motion") that argued that the plaintiffs, through their agent MediaSentry,
violated federal and state wiretapping laws in connection with their
fact-gathering in the case. Put differently, Tenenbaum argues (with
Nesson as his lawyer) that the recording industry's gathering of
information about Tenenbaum's uploads and downloads is unlawful
wiretapping. Next, on July 6, 2009, the plaintiffs in the Tenenbaum
case themselves filed a motion (that I will call "the sanctions
motion") argued
that Nesson may have violated such laws as a result of his odd (and
counterproductive) habit of recording things, as noted above. (The
district court has already ordered Nesson to show cause
why his recording was lawful in light of the judge's orders that he
cease recording; his response is due on July 9.) Both motions rely in
part on the fact that Massachusetts law requires that allparties to a communication consent to the recording of it. Mass. Gen. Laws ch. 272, s 99(B)(4) (defining "interception" as to "secretly record the contents of any wire or
oral communication through the use of any intercepting device by any
person other than a person given prior authority by all parties to such
communication") (emphasis added).

This
lengthy exposition of Tenenbaum background is necessary first because
Nesson appears to be playing fast and loose with the district court, in
violation of his obligations under the Federal Rules of Civil
Procedure. Second, Nesson grotesquely misconstrues the statutes at
issue in ways that -- if adopted -- would have lasting repercussions
well outside the bounds of copyright litigation.

Nesson's public
statements in defense of his own conduct are completely at odds with
the legal representations he made in the MediaSentry motion. More
specifically, Nesson recently told Wired Magazine
that he was "unaware" that recording a conversation in Massachusetts
requires the consent of all parties: "I have to say I was completely
unaware of this Massachusetts law. When
I dug into this thing, I am amazed to what it purports to be." Yet
only two weeks before, he relied upon the very same statute to which he
professed ignorance. In the MediaSentry motion, he wrote: "And unlike
the federal statute, the Massachusetts statute requires both parties'
consent, not merely one party's consent, before recording is exempted
fro [sic] the statute." MediaSentry Motion at 15.

To
the extent that Nesson claims, in response to the sanctions motion,
ignorance of the Massachusetts statute, he admits that he did not
review the MediaSentry motion of which he was undersigned counsel.
Notably, he is the only attorney who signed that brief who is actually
admitted to practice in the Massachusetts federal district court. The
Federal Rules of Civil Procedure, which govern practice in the federal
district court explain:

"By presenting to the court a
. . . written motion, or other paper -- whether by signing, filing,
submitting, or later advocating it -- an attorney or unrepresented
party certifies that to the best of that person's knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances
. . . the claims, defenses, and other legal contentions are warranted
by existing law or by a nonfrivolous argument for extending, modifying,
or reversing existing law or for establishing new law." Fed. R. Civ.
P. 11(b)(2) (emphasis added).

That Nesson did not
know, two scant weeks later, about the scope of Massachusetts law,
suggests that he did not read the MediaSentry motion he signed, i.e.,
he did not engage in any reasonable inquiry, in violation of Rule 11.
The Supreme Court (in another copyright case, coincidentally) held that
this duty is non-delegable:

"The signing attorney
cannot leave it to some trusted subordinate, or to one of his partners,
to satisfy himself that the filed paper is factually and legally
responsible; by signing he represents not merely the fact that it is
so, but also the fact that he personally has applied his own judgment.
. . . [T]he text establishes a duty that cannot be delegated . . . ."

Pavelic & LeFlore v. Marvel Entertainment Group,
493 U.S. 120, 125 (1989). Nesson cannot, therefore, pawn off the brief
to his co-counsel Kiwi Camara, who is hoping to have better luck as a
last-minute addition to the Tenenbaum team than he had in the Jammie
Thomas case. In any event, Camara was not admitted to practice in the
federal district court at the time of the brief's filing; only Nesson
was. Sanctions under such circumstances would be appropriate.

Had
Nesson actually reviewed the MediaSentry motion, he might have decided,
prudently, not to file it, and to be more candid to the court. The
MediaSentry motion nowhere mentions the fact that counsel Camara made the same arguments weeks before in federal district court in Minnesota (in the Jammie Thomas case), and that the district judge there ruled
(at pages 2-12) against him. Is Nesson required by law to tell the
judge in Massachusetts about the judge's decision in Minnesota only
weeks earlier? No, but it makes counsel seem needlessly evasive and
rather less trustworthy, to the detriment of the client Tenenbaum.

The
substance of the MediaSentry motion is worth understanding -- and
refuting -- because the arguments are so weak and, if adopted by a
court, would have lasting effects that go well beyond any disagreements
about copyright. Moreover, it appears that Kamara may again make the
same arguments in an apparently yet-to-be-filed class action that will seek the disgorgement of the recording industry's thousands of settlements with file sharers.

Given that the recording industry wrote an entire brief refuting these MediaSentry arguments in the Jammie Thomas case, here, and the district court dismissed the allegations with its written order,
I will be brief. I must explain at the outset, however, that in order
for MediaSentry's conduct to be potentially unlawful under the federal
wiretapping statute, it must be shown both that the communications
allegedly intercepted (i.e., the Kazaa messages transmitted to
MediaSentry) are not "readily accessible to the general public," 18 U.S.C. s 2511(2)(g)(i),
and either that MediaSentry is not a party to the communication or, if
it is, that its interception is for the purpose of violating another
statute, 18 U.S.C. s 2511(2)(d).

Tenenbaum's jurisdictional arguments are without support:MediaSentry
is a company that apparently does business in New Jersey and Maryland
(MediaSentry Motion at 8) yet is accused of violating numerous
Massachusetts statutes including Massachusetts' wiretapping law (the
one of which Nesson now pronouces ignorance) and Massachusetts'
regulations on private investigators (they must be licensed). Yet
Tenenbaum advances no basis for subjecting MediaSentry, an out-of-state
entity, to those regulations. Notably, the Massachusetts wiretapping
law has been construed not to reach the out-of-state recording of
conversations that originate or terminate in Massachusetts. MacNeill Eng'g Co. v. Trisport, Ltd.,
59 F. Supp. 2d 199, 202 (D. Mass. 1999). Those who are concerned by
the sometimes overzealous extension of state laws to out-of-state
conduct should be concerned by Tenenbaum's arguments here.

Tenenbaum would criminalize conduct because of failure to abide by a website's terms of use:Tenenbaum alleges that MediaSentry,

"using
its own copy of KaZaA, searches the KaZaA network for files . . . .
MediaSentry records an image for each screen displayed by KaZaA when it
lists the available files . . . [and] using KaZaA, downloads selected
files . . . to confirm that the files are in fact copyrighted sound
recordings." MediaSentry Motion at 2-3.

That means
that MediaSentry is acting just as any other peer on the Kazaa network,
looking for files. Tenenbaum claims that such behavior should
nonetheless be unlawful. Despite the fact that anyone can participate
on the Kazaa network for free (knowing among other things that the
recording industry monitors downloads), Tenenbaum argues that the Kazaa
network is not truly public. Rather, "the Kazaa network is available
only to users of KaZaA who consent to certain terms of use, not to the
general public." MediaSentry Motion at 10. Tenenbaum alleges that
MediaSentry violated those terms of use. Id. at 11-12. (Note that this puts Tenenbaum in the position of enforcing, as a third party, Kazaa's terms of use, which he himself violated by trading copyrighted songs.)

This
argument is very similar to that which the prosecutors used in the Lori
Drew case. My colleague, Berin Szoka, blogged about the case here,
as have many others. Lori Drew is the despicable woman who, on
MySpace, "cyber-bullied" an adolescent girl, Megan Meier, who later
killed herself. The prosecutor there argued that Drew's failure to
comport with the terms of service of MySpace constituted a criminal
violation of the Computer Fraud and Abuse Act (CFAA), 18 USC s 1030.
The district judge, as Berin noted, recently overturned the jury
verdict -- to the hosannas of the tech community (including myself) who
believe that as loathsome as Ms. Drew may be, she did not violate the
CFAA. Yet Tenenbaum makes essentially the same argument, that failure
to abide by the terms of service of a computer network will be enough
to cause one to be subjected to criminal liability, in this case, under
the federal wiretapping law, Title III, 18 U.S.C. ss 2510 et seq.
Putting aside any differences over the appropriate scope of copyright,
all those who agreed with the overturning of the jury verdict in the
Drew case should be aghast at Tenenbaum's arguments here.

Tenenbaum would not allow anyone to gather information that is only machine readable: Tenenbaum argues:

"At
the level of TCP/IP packet communications (as opposed to at the level
of web browsers that translate such communications into human-readable
form), the Internet is not readily accessible to the general public."
MediaSentry Motion at 12.

"The communications system at the
TCP/IP level requires special expertise to access. . . . An ordinary
person could not have [decoded the TCP/IP packets] because the Internet
is not designed for ordinary people to listen in on such packet
transmissions." Id.

Thus, according to Tenenbaum, the only
information that is publicly available is information that is readily
displayed by a web browser or other client software. Therefore, any
peek at information (HTML source code even?) that is not ordinarily
displayed by the browser or client software -- no matter how public
that information appears to be -- now triggers criminal liability
according to Tenenbaum.

Tenenbaum argues that if the "Court
holds otherwise, the Internet will have no protection under the wiretap
laws." MediaSentry at 13. That grossly misstates matters. If the
Court rejects Tenenbaum's position, then it is only unlawful to
intercept communications to which one is not a party and
that are not generally available to the public. That is the way that
it should be; to suggest that a person is limited in her use of
information actually transmitted to her to that which appears in the
browser is a nonsensical and irresponsible argument to make.

Tenenbaum
mentions elsewhere that "KaZaA encrypts the information it sends
between different nodes," MediaSentry Motion at 10, but he does not
belabor the point. That may be because MediaSentry relies upon the
Kazaa client software itself to decrypt the information. Even if not,
to suggest that the designated recipient of a file cannot lawfully
decrypt that file is bizarre -- we all have the right to open mail that
is addressed and delivered to us. Moreover, we all have the right to
look at at encoded message posted on a town-square bulletin board (or on
Facebook) and try to decrypt it at home. (This paragraph makes a
totally separate point from any reasonable expectation of privacy
protected by the Fourth Amendment in cases where law enforcement decrypts
information and uses it as evidence in a criminal proceeding. This is
not a criminal proceeding and the Fourth Amendment is not at issue.)

Tenenbaum misconstrues what it means to wiretap for the purpose of violating another statute:As noted above, the consent exception to the federal statute does not apply when the purpose of the wiretapping was to violate the law. Thus, under such circumstances, being a party to a communication is not enough to escape liability. Tenenbaum
suggests that MediaSentry is not saved by the consent exception to the
federal statute because its wiretapping was for the purpose of violating the law, namely for
"engaging in the business of a private detective without a license."
That is silly for at least two reasons. First, his construction of the
detective statute, MediaSentry Motion at 6, would cover his own
counsel, who themselves necessarily collect evidence to be used at
trial. Every lawyer does. Second, even if MediaSentry's conduct had
the effect of violating the licensing regulation, it was not MediaSentry's goal to do so. The courts, on this point, are unanimous. See, e.g., Sussman v. ABC, Inc., 186 F.3d 1200, 1202 (9th Cir. 1999); United States v. Dale, 991 F.2d 819, 841 (D.C. Cir. 1993); Betancourt v. Nippy, Inc.,
137 F. Supp. 2d 27, 33-34 (D.P.R. 2001) (purpose of wiretapping was to
prepare for a non-frivolous suit). (Puerto Rico is part of the First
Circuit of U.S. federal courts, as is Massachusetts, where Tenenbaum's
case is pending.)

In sum, Nesson (through Tenenbaum) does a
butcher job on wiretapping law to such a degree that he ought to be
ashamed to be advancing these arguments. The effect of his proposed
construction of law is not merely to expose countless IT professionals
and computer hobbyists to criminal penalties, but also to impair law
enforcement by preventing them from employing certain
non-warrant-requiring surveillance techniques they have been using
lawfully for decades.